Enstrom v. Dunning

(dissenting in part). — The question of estoppel was not raised in the court below. Nor was it pleaded. The general rule is that estoppel, to be availed of on the trial or hearing must be specially pleaded. 10 R. C. L. 842; Lakeland v. Turner, 207 Ala. 73, 91 So. 877; W. T. Raleigh Co. v. Langford, 112 Fla. 487, 150 So. 592. Nor was this question embraced in the statement of questions involved, as made by appellant or as corrected by appellee. And surely partial payments made on a usurious contract, either before or after maturity cannot estop the borrower from setting up usury as a defense.…